What does vaccine mandate decision mean for businesses?

Friday, 25 February 2022

Businesses may need to take notice of some aspects of a decision that has backed police and Defence Force staff who argued against the Covid-19 vaccination mandate, but it is unlikely to mean any policies need to be changed, legal experts say.

The Government mandate required all Defence Force personnel and all police constables, recruits and authorised officers to receive two doses of the vaccine by March 1, 2022.

Justice Francis Cooke​ declared the mandate invalid on religious grounds and the right to refuse medical treatment.

He said the order was implemented to ensure the continuity of public services and promote public confidence in the services, rather than to stop the spread of Covid-19. The number of staff affected was too small to make a significant difference and they could have been dealt with by pre-existing internal vaccine policies.

**READ MORE:

* Covid-19: Judge overturns police and Defence Force vaccine mandate

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* Covid-19: Businesses should 'tread carefully' if publicising vaccinated staff, lawyer says

**

Hesketh Henry partner and employment lawyer Jim Roberts​ said it was highly unlikely the case would be used against private businesses.

The reason it would be hard to apply to private businesses was that, of the 30,000 police and defence workers, only about 250 had their contracts terminated due to the vaccine mandate, Roberts​ said.

“The High Court has focused on these numbers quite heavily. So to successfully run these arguments again you would need a similar disproportion between vaccinated and unvaccinated people,” Roberts​ said.

As long as private employers had followed health and safety regulations and done a risk assessment before putting vaccine mandates in place, this judgement should pose little risk to their business, he said.

“The concern to private employers will be whether this case will challenge the policies they already have in place. But I think it is a real stretch to take anything from this judgement and apply it to a private employer.”

Business New Zealand chief executive Kirk Hope​ said the business community was not worried about wider implications because the judge made it clear the ruling had a limited application.

“Businesses utilised the mandates based on guidance from health and safety regulators. We would be very unhappy if we saw any liability for businesses that had been following the rules.”

But Duncan Cotterill partner and employment lawyer Olivia Lund​ said while the High Court decision was limited in its direct application, there were several parts applicable to private business.

“The decision essentially upholds the freedom of religious beliefs and people’s right to uphold that. So if you have had an employee objecting to a vaccine mandate on those grounds, we now have a case that shows that is a valid objection to vaccine mandates,” Lund​ said.

Employers would need to properly consider religious beliefs and what reasonable accommodations can be made to employees objecting to vaccine mandates on those grounds, she said.

The second aspect of the decision for private employers was that the High Court accepted evidence that the effectiveness of the vaccine was reduced when facing Omicron, she said.

“The acceptance that the vaccine is less effective against Omicron may call into question some decisions that employers had made, if they had undertaken a health and safety risk assessment based solely on the vaccine stopping transmission.”

The judgment noted that the vaccine might prevent spread of Omicron to some extent, but not as much as it did for the original variants of Covid-19.

But Lund​ said that businesses who had introduced vaccine requirements should not need to change those, but might need to consider alternatives rather than termination for employees opposed to vaccination on particular grounds.

“The decision is clear that it supports vaccination, particularly as it reduces the severity of having Covid-19. It also discusses whether there are alternatives, such as police or defence staff being stood down or suspended rather than having their employment terminated.”

Lund​ said the impact of the decision would be seen on a case-by-case basis.